UNITED STATES DISTRICT COURT HOUSTON DIVISION J. SCOTT ...knobbemedical.com/wp-content/uploads/2012/03/Complaint-412-cv-… · 13. The U.S. Food and Drug Administration (“FDA”)

841058.3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ZELTIQ AESTHETICS, INC.

Plaintiff,

vs. J. SCOTT CRONAN, d/b/a TEXAS LASER SOURCE; NASSAU BAY DERMATOLOGY, P.A.; DR. JEANNE PAZ, M.D.; and TRANSFORMATION MEDISPA, LLC

Defendants.

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Civil Action No. Judge

PLAINTIFF ZELTIQ AESTHETICS, INC.’S APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION , AND

PERMANENT INJUNCTION, and VERIFIED COMPLAINT

Plaintiff Zeltiq Aesthetics, Inc. (“Zeltiq”), by and through counsel, seeks a temporary

restraining order, preliminary injunction, permanent injunction, attorney’s fees, and damages

against Defendants J. Scott Cronan, d/b/a Texas Laser Source; Nassau Bay Dermatology, P.A.;

Jeanne Paz, M.D.; and Transformation MediSpa, LLC, and states the following in support.

NATURE OF THE ACTION

1. This is an action brought under the trademark laws of the United States, including

the Lanham Act, 15 U.S.C. §§ 1051 et seq., for trademark infringement, false designation of

origin, unfair competition, and false advertising.

JURISDICTION AND VENUE

2. This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§

1331 (federal question jurisdiction) and 1338 (civil action arising under any Act of Congress

relating to trademarks).

Case 4:12-cv-00373 Document 1 Filed in TXSD on 02/08/12 Page 1 of 22

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3. This Court has personal jurisdiction over Defendants because each resides in and

transacts business within this state and in this judicial district, and Zeltiq's causes of action arise

from transactions within this state and judicial district.

4. Venue in this district is proper pursuant to 28 U.S.C. § 1391(b).

THE PARTIES

5. Plaintiff Zeltiq is a corporation organized and existing under the laws of

Delaware with a principal place of business at 4690 Willow Road, Pleasanton, California 94588-

2843.

6. On information and belief, Defendant Scott Cronan (“Cronan”) is an individual

doing business as Texas Laser Source (“TLS”), an unincorporated business, with a residence at

3113 Sea Channel Drive, Seabrook, Texas 77586, and a place of business at 5373 West

Alabama, Suite 415, Houston, Texas 77056.

7. On information and belief, Defendant Nassau Bay Dermatology, P.A. (“Nassau

Bay”) is a Texas professional association with a place of business at 390 East Medical Center

Boulevard, Webster, Texas 77589.

8. On information and belief, Defendant Jeanne Paz, M.D. is an individual resident

of this state and judicial district, and is the President of Nassau Bay.

9. On information and belief, Defendant Transformation MediSpa, LLC is a Texas

limited liability corporation with a principal place of business at 2530 W. Holcombe Blvd,

Houston, Texas 77030.


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FACTUAL BACKGROUND

A. Zeltiq and its CoolSculpting Procedure 10. Zeltiq is a medical technology company that owns and/or is the exclusive licensee

of the technology underlying the process known as “cryolipolysis,” a non-invasive, patented,

clinically proven procedure which involves freezing fat cells without damage to the skin.

11. Cryolipolysis involves the selective reduction of stubborn fat bulges through the

controlled cooling of subcutaneous fat tissue, which is broken down and absorbed by the body

through a process known as “apoptosis” to gradually reshape body contours.

12. Cryolipolysis is intended to address stubborn fat bulges that may not respond to

diet or exercise; obese individuals are generally not good candidates for cryolipolysis because

they typically have body areas that require significant fat reduction, and are unlikely to obtain

noticeable aesthetic results from such treatment.

13. The U.S. Food and Drug Administration (“FDA”) approved Zeltiq’s cryolipolysis

device in September 2010 for the provision of cryolipolysis services to the flank region, or “love

handles.”

14. Zeltiq is the only party in the United States to have obtained FDA approval to

offer a cryolipolysis device and services.

15. Zeltiq markets its cryolipolysis device and system under the registered trademarks

ZELTIQ® and COOLSCULPTING®, which it distributes exclusively to authorized medical

professionals that receive training on proper use of the device in compliance with FDA-approved

guidelines (“Physician Providers”).


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16. Zeltiq has extensively marketed and promoted its ZELTIQ COOLSCULPTING

system, which has received substantial press coverage since its approval by the FDA for non-

invasive, cosmetic, body-contouring.

17. Authorized Physician-Providers who purchase the ZELTIQ COOLSCULPTING

device enter into a Master Services Agreement (“MSA”) that includes a non-transferrable license

to use Zeltiq’s intellectual property in connection with the provision of cryolipolysis services

using Zeltiq’s device, including but not limited to trademarks and marketing materials. A true

and correct copy of the Terms and Conditions of Sale from the MSA is attached as Exhibit A.

18. The terms of the MSA expressly prohibit Physician-Providers from selling,

renting, leasing, or otherwise transferring Zeltiq’s device for use by any third party, unless the

proposed transferee has entered into a separate written agreement with Zeltiq, intended to ensure

proper use of Zeltiq’s trademarks as authorized by the trademark license, and its proprietary

technology and device in compliance with its FDA approval. See Exhibit A at p. 2 (“No Waiver.

No Assignment. Severability of Terms”).

B. Zeltiq’s Registered Trademarks and Service Marks

19. Zeltiq owns the following valid and subsisting U.S. trademark and service mark

registrations:

MARK REG. NO. GOODS/SERVICES ZELTIQ 3,897,576 Medical devices, namely, apparatus

for tissue contouring and cellulite improvement; medical services, namely, procedures and services in the nature of tissue contouring and cellulite improvement.

COOLSCULPTING 3,921,045 Medical services, namely, procedures and services in the nature of tissue contouring and cellulite improvement.


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MARK REG. NO. GOODS/SERVICES COOLSCULPTING 3,957,850 Medical devices, namely, apparatus

for tissue cooling, contouring and cellulite improvement; medical devices used to destroy fat cells.

20. Zeltiq's trademarks are widely recognized in the United States and worldwide as

the identifier of Zeltiq and its high quality goods and services.

C. J. Scott Cronan, d/b/a Texas Laser Source

21. On information and belief, TLS leases certain devices to doctors and “medi spas”

for use in connection with cosmetic medical procedures, such as laser hair removal and cosmetic

skin treatments.

22. On information and belief, TLS is advertising “Zeltiq Coolsculpting

(Cryolipolysis)” as a device available for rent from TLS. A true and correct copy of a TLS

brochure is attached as Exhibit B.

23. On information and belief, Cronan and other TLS personnel are administering

medical treatments purporting to be genuine ZELTIQ COOLSCULPTING services.

24. On information and belief, neither Cronan nor any other TLS personnel are

medical doctors or otherwise trained to operate medical devices.

25. TLS has not purchased a ZELTIQ COOLSCULPTING device from Zeltiq or its

distributors, nor does Zeltiq have any record of existing Physician Providers seeking Zeltiq’s

consent to a transfer of a ZELTIQ COOLSCULPTING device to TLS pursuant to the terms of

the MSA.

26. Neither Cronan nor any other TLS employee or representative is an authorized,

trained provider of ZELTIQ COOLSCULPTING services, nor are they licensed to use Zeltiq’s

trademarks and service marks.


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27. On information and belief, TLS distributes marketing materials purporting to

advertise “Coolsculpting by Zeltiq,” which contains, among other things, a logo and trade dress

previously used by Zeltiq, as well as “before and after” images owned by Zeltiq or its authorized

Physician Providers. A true and correct copy of these materials is attached as Exhibit C.

28. TLS is not licensed to use the marks ZELTIQ, COOLSCULPTING, or any other

Zeltiq intellectual property in connection with any goods or services that it offers, nor is it

authorized to license the use of the marks to others.

D. Nassau Bay Dermatology and Dr. Jeanne Paz, M.D.

29. On Tuesday, December 6, 2011, Dr. Paz and Nassau Bay held an “open house,”

the advertisement for which stated, “We are happy to introduce our new non-invasive fat

reduction laser [sic] Coolsculpting by Zeltiq.” A true and correct copy of this advertisement is

attached as Exhibit D.

30. TLS was one of several vendors promoting various goods and services at the open

house.

31. TLS representative Janeé Wimberly described the services she was promoting at

the open house as “Coolsculpting,” and the manufacturer of the “laser device” used in the

procedure as “Zeltiq.”

32. Wimberly distributed materials to open house attendees that identified the process

as the FDA-approved “Zeltiq Coolsculpting” procedure developed by Zeltiq’s licensors. A copy

of these materials is attached as Exhibit E.

33. Wimberly indicated that TLS recently purchased the “Coolsculpting” device,

which it would soon offer to Dr. Paz’s patients.


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34. On information and belief, Wimberly is administering medical treatments

purporting to be ZELTIQ COOLSCULPTING services.

35. On information and belief, Wimberly is not a medical doctor or otherwise trained

to operate medical devices.

36. Neither Dr. Paz nor Nassau Bay are authorized Zeltiq Physician Providers or

owners of a ZELTIQ COOLSCULPTING device, nor is Dr. Paz or any other Nassau Bay

employee a trained provider of ZELTIQ COOLSCULPTING services.

37. Neither Dr. Paz nor Nassau Bay are licensed to use the ZELTIQ or

COOLSCULPTING marks, or any other Zeltiq intellectual property in connection with any

goods or services they offer.

38. Dr. Paz’s and Nassau Bay’s description of Zeltiq’s goods and services as a “fat

reduction laser” is a materially false statement, as cryolipolysis does not involve lasers.

E. Transformation MediSpa

39. On information and belief, Transformation MediSpa offers a procedure it purports

to be Zeltiq’s CoolSculpting services.

40. On information and belief, Transformation MediSpa distributes marketing

materials purporting to advertise “Coolsculpting by Zeltiq” containing, among other things, a

logo and trade dress owned and previously used by Zeltiq, and “before and after” images owned

by Zeltiq and/or its authorized Physician Providers. A true and correct copy of these materials is

attached as Exhibit F.

41. On information and belief, Transformation MediSpa acquired the marketing

materials it distributes from TLS.


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42. On information and belief, TLS representatives, including but not limited to

Cronan, are currently administering cryolipolysis treatments that they purport to be

“Coolsculpting by Zeltiq” services at Transformation MediSpa.

43. On information and belief, no Transformation MediSpa personnel are medical

doctors or otherwise trained to operate medical devices.

44. Transformation MediSpa is not an authorized owner of a ZELTIQ

COOLSCULPTING device, nor is it a trained provider of ZELTIQ COOLSCULPTING

services.

45. Transformation MediSpa is not licensed to use the ZELTIQ or

COOLSCULPTING marks, or any other Zeltiq intellectual property in connection with any

goods or services that it offers.

F. Zeltiq’s Inability to Exercise Quality Control O ver Defendants’ Cryolipolysis Services

46. On information and belief, the cryolipolysis services offered by Defendants do not

meet Zeltiq’s high standards for services rendered under Zeltiq’s ZELTIQ and

COOLSCULPTING marks.

47. On information and belief, the cryolipolysis services offered by Defendants using

Zeltiq’s device are not in compliance the FDA’s approval of the device for use only on the flank

region.

48. On information and belief, Defendants may be offering and providing

cryolipolysis services to individuals who are not proper candidates for the treatment, which is

likely to lead to unsatisfactory results and, as a result, damage to the good will associated with

Zeltiq’s brand.


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49. Zeltiq lacks the means to ensure the treatments administered by Defendants to

patients who believe they are receiving authentic ZELTIQ COOLSCULPTING services meet

Zeltiq’s quality standards, and are in compliance with FDA approval.

50. Defendants’ description of Zeltiq’s CoolSculpting device and procedure as

involving “lasers” is a material misrepresentation of the nature of Zeltiq’s goods and services.

51. Defendants’ unauthorized and improper use of Zeltiq’s trademarks and service

marks in connection with cryolipolysis treatments performed by untrained, unlicensed parties

unaffiliated with Zeltiq is likely to diminish the reputation of Zeltiq, and the value of its

intellectual property and the good will associated therewith.

52. As a result of Defendants’ actions, Zeltiq was required to hire the law firms of

Thompson Hine, LLP and Locke Lord, LLP, and is obligated to pay their attorneys a reasonable

fee for their services.

COUNT I FEDERAL TRADEMARK INFRINGEMENT (15 U.S.C. § 1114)

(Temporary Restraining Order, Preliminary and Permanent Injunctive Relief, and Damages)

53. Zeltiq incorporates by reference as if fully stated herein the allegations contained

in paragraphs 1 through 52.

54. Defendants’ unauthorized use in commerce of Zeltiq’s ZELTIQ and

COOLSCULPTING trademarks and service marks in connection with the advertising,

marketing, and provision of cryolipolysis treatments, as alleged herein, is likely to cause

confusion, to cause mistake, or to deceive consumers as to the source, origin, affiliation,

connection or association of Defendants’ services, and is likely to cause consumers to mistakenly

believe that Defendants’ cryolipolysis treatments have been authorized, sponsored, approved,


10 841058.3

endorsed, or licensed by Zeltiq, or that Defendants are in some way affiliated with Zeltiq or the

goods and services that Zeltiq offers under its marks.

55. Defendants’ acts, alleged herein, constitute federal trademark infringement in

violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114.

56. By reason of Defendants’ actions, Zeltiq has suffered irreparable harm to its

valuable trademarks and service marks and the goodwill associated therewith. Zeltiq has been,

and unless Defendants are preliminarily and permanently restrained from their actions, will

continue to be irreparably harmed.

57. As a direct and proximate result of Defendants’ conduct, Zeltiq has suffered and

will continue to suffer damages in an amount to be proven at trial.

COUNT II TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

(15 U.S.C. § 1125(a)(1)(A)) (Temporary Restraining Order, Preliminary and

Permanent Injunctive Relief, and Damages)



59. Defendants’ unauthorized use in commerce of Zeltiq’s ZELTIQ and

COOLSCULPTING trademarks and service marks and other proprietary materials of Zeltiq in

connection with the advertising, marketing, and provision of cryolipolysis treatments, as alleged

herein, is likely to cause confusion, to cause mistake, or to deceive consumers as to the source,

origin, affiliation, connection or association of Defendants’ services, and is likely to cause

consumers to mistakenly believe that Defendants’ cryolipolysis treatments have been authorized,

sponsored, approved, endorsed, or licensed by Zeltiq, or that Defendants are in some way

affiliated with Zeltiq or the goods and services that Zeltiq offers under its marks.


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60. Defendants’ acts, alleged herein, constitute infringement and unfair competition

in violation of Section 43(a)(1)(A) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A).







COUNT III FALSE ADVERTISING AND FALSE DESIGNATION OF ORIGIN

(15 U.S.C. § 1125(a)(1)(B)) (Temporary Restraining Order, Preliminary and

Permanent Injunctive Relief, and Damages)



64. Defendants’ advertisement and promotion of cryolipolysis treatments using

Zeltiq’s name and the ZELTIQ and COOLSCULPTING marks constitutes a misrepresentation of

the nature, characteristics, and qualities of their services and commercial activities.

65. Defendants’ acts, alleged herein, constitute false advertising and false designation

of origin in violation of Section 43(a)(1)(B) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B).






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APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION



69. Immediate relief is necessary in order to restrain Defendants from using Zeltiq’s

registered trademarks and service marks in connection with the advertising and promotion of

services not affiliated with or endorsed by Zeltiq, which activity constitutes trademark

infringement, unfair competition, false advertising and false designation of origin. Absent entry

of a temporary restraining order and a preliminary and permanent injunction, Zeltiq has no

adequate remedy at law against Defendants and their unauthorized misuse of Zeltiq’s valuable

intellectual property. Absent immediate relief, Zeltiq will suffer continuing, irreparable harm to

its intellectual property and the goodwill associated therewith from Defendants’ illegal activities.

70. Zeltiq asks the Court to enter a temporary restraining order, preliminary

injunction, and permanent injunction restraining the Defendants from:

(i) using the marks ZELTIQ, COOLSCULPTING, and/or any other confusingly similar mark or colorable imitation thereof in connection with the promotion, advertisement, display, sale, offer for sale, manufacture, production, circulation, or distribution of any goods or services offered by any of the Defendants;

(ii) performing any act, making any statement, or distributing any materials that are likely to lead members of the public to believe that any service or product performed, distributed, leased, or sold by Defendants is associated or connected with Zeltiq, or is sold, licensed, sponsored, approved or authorized by Zeltiq, including but not limited to statements that defendants are offering cryolipolysis treatments that are “FDA-Approved,” or involve technology developed at Harvard University or Massachusetts General Hospital by Drs. Richard Rox Anderson and Dieter Manstein;

(iii) reproducing, displaying distributing, or creating derivative works from any text, graphics, photographs, or other materials that are owned by and/or emanate from


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Zeltiq or its authorized Physician Providers concerning “cryolipolysis” and the results therefrom; and

(iv) otherwise taking any action likely to cause public confusion, mistake, or deception as to the connection, affiliation, sponsorship, approval, or other association of defendants’ goods or services with Zeltiq or its goods or services.

71. To obtain a preliminary injunction, Zeltiq must show (1) a substantial likelihood

that it will prevail on the merits, (2) a substantial threat that it will suffer irreparable injury if the

injunction is not granted, (3) that its threatened injury outweighs the threatened harm to

Defendants, and (4) that granting the preliminary injunction will not disserve the public interest.

72. The facts provide ample support for granting the requested injunctive relief.

73. Zeltiq has a substantial likelihood of prevailing on the merits of its causes of

action, as demonstrated below:

A. Zeltiq Has a Substantial Likelihood of Prevailing on the Merits of its Cause of Action for Federal Trademark Infringement

74. Zeltiq has established that it owns the following valid and subsisting U.S.

trademark registrations:

MARK REG. NO. GOODS/SERVICES ZELTIQ 3,897,576 Medical devices, namely, apparatus

for tissue contouring and cellulite improvement; medical services, namely, procedures and services in the nature of tissue contouring and cellulite improvement.

COOLSCULPTING 3,921,045 Medical services, namely, procedures and services in the nature of tissue contouring and cellulite improvement.

COOLSCULPTING 3,957,850 Medical devices, namely, apparatus for tissue cooling, contouring and cellulite improvement; medical devices used to destroy fat cells.


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75. These federal registrations serve as prima facie evidence of Zeltiq’s exclusive

right to use the marks in U.S. commerce. Thus, Zeltiq has established that its trademarks are

legally protectable.

76. None of the Defendants are authorized to use Zeltiq’s marks in connection with

the sale of any goods or services. None of the Defendants have purchased a ZELTIQ

COOLSCULPTING device from Zeltiq or its distributors, nor has Zeltiq granted any existing

Physician Provider permission under the terms of the MSA to transfer Zeltiq’s device to any of

the Defendants. None of the Defendants are licensed to use the ZELTIQ and/or

COOLSCULPTING marks, or any other intellectual property owned by Zeltiq in connection

with any goods or services.

77. Since none of the Defendants possess any authority to use Zeltiq’s intellectual

property, each Defendant is engaged in activity that infringes Zeltiq’s registered marks.

Specifically:

(i) Defendant TLS is advertising a “Zeltiq Coolsculpting (Cryolipolysis)” device for rent, and distributes marketing materials purporting to advertise “Coolsculpting by Zeltiq” featuring a design mark and trade dress owned and previously used by Zeltiq, as well as before and after images owned by Zeltiq and its authorized Physician Providers;

(ii) Defendants Paz and Nassau Bay held an “open house,” the advertisement for which stated, “We are happy to introduce our new non-invasive fat reduction laser Coolsculpting by Zeltiq”;

(iii) Defendant TLS was one of several vendors at the open house;

(iv) a representative of Defendant TLS, Janeé Wimberly, described the services she was promoting at the open house as “Coolsculpting,” and the manufacturer of the “laser device” used in the procedure as “Zeltiq”;

(v) Wimberly distributed materials to open house attendees that identified the process as the FDA-approved “Zeltiq Coolsculpting” procedure;

(vi) Defendant Transformation MediSpa offers a procedure it purports to be “Coolsculpting, the trade name used by Zeltiq”;


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(vii) Defendant Transformation Medispa distributes marketing materials purporting to advertise “Coolsculpting by Zeltiq” containing, among other things, a design mark and trade dress previously used by Zeltiq, as well as “before and after” images owned by Zeltiq and/or its authorized Physician Providers; and

(viii) Defendant TLS representatives are currently administering cryolipolysis treatments that they purport to be “Coolsculpting by Zeltiq” services at Defendant Transformation MediSpa.

78. It is without question that Defendants’ unauthorized use in commerce of Zeltiq’s

ZELTIQ and COOLSCULPTING marks in connection with the provision of cryolipolysis

treatments is likely to cause confusion, to cause mistake, or to deceive consumers as to the

source, origin, affiliation, connection or association of Defendants’ services. Consumers are

likely to believe they are receiving Zeltiq-authorized COOLSCULPTING treatments that have

achieved FDA approval, and that Zeltiq has authorized Defendants to administer such treatments,

which is untrue. Therefore, Defendants’ unauthorized activities clearly infringe on Zeltiq’s

legally protectable marks, and that there is a substantial likelihood that Zeltiq will prevail on its

claims for trademark infringement against Defendants.

B. Zeltiq Has a Substantial Likelihood of Prevailing on the Merits of its Cause of Action for False Advertising and False Designation of Origin.

79. Zeltiq has demonstrated that it will prevail on its false advertising and false

designation claims against Defendants. First, Defendants are making false statements about the

treatments they are offering, including (i) advertisements and promotion of cryolipolysis

treatments using Zeltiq’s marks, including representations that the services provided are “Zeltiq

Coolsculpting treatments,” which constitutes a misrepresentation of the nature, characteristics,

and qualities of their services; (ii) materially false descriptions of Zeltiq’s goods and services as

a “fat reduction laser”; (iii) referring to Zeltiq as the manufacturer of the “laser device” used in

the “Coolsculpting” procedure; and, (iv) representing that the services Defendants are providing

are “FDA approved.”


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80. Second, the false statements made by Defendants will clearly mislead consumers.

Consumers who encounter Defendants’ advertisements or promotional material, visit the

Defendants’ places of business, or attend their open houses will obtain false and materially

misleading information about the services Defendants offer. Such consumers will likely

mistakenly believe that Defendants’ cryolipolysis treatments have been authorized, sponsored,

approved, endorsed, or licensed by Zeltiq, or that Defendants are in some way affiliated with

Zeltiq, or the goods and services Zeltiq offers under its marks.

81. Third, the false statements are material representations intended by Defendants to

influence potential customers to purchase services from them. Defendants’ misrepresentations

regarding the “FDA approval” of their services, Defendants’ unauthorized use of Zeltiq’s marks

in advertisements and promotions of cryolipolysis treatments, and Defendants’ false descriptions

of Zeltiq’s goods and services as a “fat reduction laser” are intended to mislead potential

customers by making potential customers believe that Zeltiq has approved and that authorized

doctors are providing those services. Defendants’ only goal in making these material

misrepresentations is to deceive potential customers and induce them to buy Defendants’

services under false pretenses.

82. Fourth, it is undisputed that Defendants are selling and advertising the goods and

services at issue in interstate commerce.

83. Finally, Zeltiq is experiencing current and ongoing damage. Defendants’ false

statements relating to Zeltiq and its marks is likely to diminish Zeltiq’s reputation and the value

of its intellectual property. This is precisely the type of unsupervised, unregulated activity Zeltiq

seeks to prohibit by only entering into MSAs with authorized, trained Physician Providers,

thereby protecting both the safety of cryolipolysis patients and Zeltiq’s own valuable reputation.


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84. Zeltiq has demonstrated that Defendants’ actions have created a likelihood of

confusion among consumers as to the source, origin, affiliation, connection or association of

Defendants’ services with Zeltiq. This likelihood of confusion has irreparably harmed and will

continue to irreparably harm Zeltiq’s goodwill in its intellectual property and Zeltiq’s brand,

especially with the danger that Defendants’ patients will be dissatisfied with the quality of the

service they receive, and associate that negative experience with Zeltiq.

85. If the Court does not grant a Temporary Restraining Order and Preliminary

Injunction, Zeltiq will continue to suffer irreparable harm to the goodwill in its valuable marks.

Other remedies, including an accounting of Defendants’ damages, are insufficient to compensate

the damage to Zeltiq’s goodwill and brand.

86. The threat that Zeltiq will suffer irreparable harm outweighs any damage that an

injunction might cause the Defendants. The only conceivable “harm” that could come to

Defendants from issuance of a Temporary Restraining Order or Injunction is that they would

cease the reaping of any ill-gotten profits from their infringing and potentially dangerous

activities. This potential “harm” does not outweigh the irreparable harm Zeltiq will suffer to its

goodwill and ability to conduct business and protect its brands if Defendants are permitted to

continue unlawful activities.

87. Enjoining Defendants from their infringing and potentially dangerous activities

will not harm the public interest. The Lanham Act exists to ensure that the owner of a trademark

reaps the benefits of the goodwill of his business, and to protect the ability of consumers to

distinguish among competing products. Thus, it is in the public interest to safeguard against any

potential confusion between Zeltiq and the Defendants’ unauthorized activities.


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88. Enjoining Defendants from their infringing and potentially dangerous activities

will, in fact, protect the public. Cryolipolysis involves highly specialized services performed

through the use of devices incorporating patented technology that only Zeltiq and its authorized

Physician Providers are trained to properly administer. Defendants may be offering and

providing cryolipolysis services to individuals who are not proper candidates for the treatment

and who will likely have unsatisfactory results.

89. Moreover, Zeltiq lacks the means to ensure the cryolipolysis treatments

administered by Defendants to patients believing they are getting authentic ZELTIQ

COOLSCULPTING services are of the quality expected by Zeltiq and in compliance with FDA

approval. Although Defendants are advertising their services as “FDA approved”, they may not

be operating within the bounds of the FDA approval by having unlicensed, untrained individuals

performing the treatments. This is exactly the type of harm to the public that the FDA approval

process addresses, and the type of harm that the restrictions in Zeltiq’s MSA with authorized

Physician Providers seeks to avoid.

90. The Temporary Restraining Order and Preliminary Injunction requested by Zeltiq

will prevent Defendants from administering cryolipolysis treatment services for which they are

neither trained, nor authorized, thereby protecting unsuspecting consumers from deception,

unsatisfactory results that they will associate with Zeltiq, and possible physical injury.

PRAYER FOR RELIEF

WHEREFORE, Zeltiq respectfully requests the following relief:

A. That Defendants, their affiliates, officers, directors, agents, representatives,

attorneys, and all persons acting or claiming to act on their behalf or under their direction or


19 841058.3

authority, and all persons acting in concert or participation therewith, be temporarily restrained

and preliminarily and permanently enjoined from:

(i) using the marks ZELTIQ, COOLSCULPTING, and/or any other confusingly

similar mark or colorable imitation thereof in connection with the promotion, advertisement,

display, sale, lease, offer for sale or lease, manufacture, production, circulation, or distribution of

any goods or services offered by any of the Defendants;

(ii) performing any act, making any statement, or distributing any materials that are

likely to lead members of the public to believe that any service or product performed, distributed,

leased, or sold by Defendants is associated or connected with Zeltiq, or is sold, licensed,

sponsored, approved or authorized by Zeltiq, including but not limited to statements that

Defendants are offering cryolipolysis treatments that are “FDA-Approved,” or involve

technology developed at Harvard University or Massachusetts General Hospital by Drs. Richard

Rox Anderson and Dieter Manstein;

(iii) reproducing, displaying distributing, or creating derivative works from any text,

graphics, photographs, or other materials owned by and/or emanating from Zeltiq or its

authorized Physician Providers concerning “cryolipolysis” and the results therefrom that is likely

to cause confusion, mistake, or deception as to the source, origin, affiliation, connection, or

association of Defendants’ goods or services with Zeltiq; and

(iv) otherwise taking any action likely to cause public confusion, mistake, or

deception as to the connection, affiliation, sponsorship, approval, or other association of

Defendants’ goods or services with Zeltiq or its goods or services;

B. For an order awarding damages pursuant to 15 U.S.C. § 1117, including but not

limited to each Defendants’ profits associated with its sale of services in connection with Zeltiq’s


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ZELTIQ or COOLSCULPTING marks, Zeltiq’s damages, costs, and treble damages pursuant to

15 U.S.C. § 1117;

C. For an order directing each Defendant to provide a full written accounting of all

treatments sold to consumers in connection with Zeltiq’s ZELTIQ or COOLSCULPTING marks;

D. For an order requiring each Defendant to issue corrective advertising to all

customers, potential customers, and other recipients of its prior false advertising in a form and

manner directed by the Court;

E. For an order directing Defendants to deliver to Zeltiq for destruction all materials

in their possession or under their control bearing or using Zeltiq’s ZELTIQ or

COOLSCULPTING marks or any other mark confusingly similar thereto, or any other Zeltiq

intellectual property;

F. For an order directing Defendants to file with this Court, and serve upon Zeltiq’s

counsel within thirty days after entry of such judgment, a written report under oath, setting forth

in detail the manner and form in which it has complied with such judgment;

G. For an award of Zeltiq's costs and disbursements incurred in this action;

H. For an order awarding attorneys’ fees for violation of the Lanham Act, or as

otherwise allowed by law or equity;

I. For an award of interest, including prejudgment and post judgment interest at the

statutory rate; and

J. Any other additional relief as the Court deems just and proper.


21 841058.3

Date: February 8, 2012 Respectfully submitted,

_____/s/ Nathan C. Dunn____________ Nathan Dunn State Bar No. 24036509 Southern District No. 33428 LOCKE LORD LLP 2800 JPMorgan Chase Tower 600 Travis Houston, Texas 77002 Phone: (713) 226-1383 [email protected]

Of Counsel: Carrie A. Shufflebarger* (Ohio Bar No. 0081141) Heather M. Hawkins* (Ohio Bar No. 0078569) Thompson Hine LLC 312 Walnut Street Fourteenth Floor Cincinnati, Ohio 45202 (513) 352-6700 (513) 241.4771 (facsimile) [email protected] [email protected]. * Counsel will file motions for admission pro hac vice.



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